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52 Cards in this Set
- Front
- Back
- 3rd side (hint)
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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (3 elements, 3 cases)
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1. extreme or outrageous conduct 2. intentionally or recklessly causes 3. severe emotional distress; Wilkinson v. Downtown (husband in ditch), bill collectors case, mother and daughter injured, doctor didn't treat them well
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Test - would it cause an average member of the community to say "outrageous!"
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[2 requirements, 1 case] RTT § 14 - Statutory Purpose Rule: An actor is negligent if, without excuse,
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1. the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes AND
2. the victim is within the class of persons the statute is designed to protect. Gorris (sheep) |
Expansive view - Stimpson (heavy rig driven on streets broke pipes in P's building)
Narrower view - Burnett (statute for miners, trucker injured) |
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Res Ipsa Loquitur: The factfinder may infer negligence from the very fact of the accident when
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1. The event is of a kind which ordinarily does not occur in the absence of negligence of a class of actors of which the D is a relevant member.
2. The D had control of the agency or instrumentality that caused the P's harm at the relevant time (when the negligence occurred, not at the time of injury). |
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Necessity and Contributory Negligence
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A person faced with an emergency who acts, without opportunity for deliberation, to avoid an accident may not be charged with contributory negligence if he acts as a reasonably prudent person would act under the same emergency circumstances, even though it appears afterwards that he did not take the safest course or exercise the best judgment.
Caveat: No party can rely on an emergency created by his own negligence. |
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Assumption of Risk (3 elements, 2 rationales)
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1. voluntary
2. knowing 3. agreement that no duty is owed Rationales 1. Personal autonomy 2. Utility/wealth maximization |
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Exceptions to But-for Causation (4 exceptions, 4 cases)
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1. Increased Chance of Loss (followed by some courts), Herskovits, toxic substances
2. Multiple sufficient causes - All joint tortfeasors are fully responsible for the undivided consequences of their own actions, Kingston 3. Alternative liability, Summers, One of two Ds is responsible for the harm, both were negligent towards D - they are both held liable unless they can show which one of them is responsible (burden of proof shifts to D) 4. Market share liability - Ds were negligent to a class of Ps, Ds can all be held liable for the harm according to their share of the market (as long as they comprise a substantial percentage of the market at fault), Sindell |
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Joint liability
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If 2 actors are both negligent and their negligence causes an indivisible injury, both are held liable for the entire harm. Each of the several obligors can be responsible for the entire loss if the others are unable to pay.
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Several liability only system
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Each is liable for a portion/for their share of the harm. P risks the insolvency of all Ds barring his recovery.
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Joint and several liability system
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Each is liable for its share (several) as well as for the harm in its entirety if one or more of the Ds is insolvent.
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Proximate Cause (majority view)
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Wagon Mound Rule - the D is only liable for harms that are reasonably foreseeable from its conduct. RTT 29 - An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious.
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Proximate Cause (minority view)
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Polemis rule - D is liable for all the direct consequences of his negligence.
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3 Exceptions to the Wagon Mound Rule
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The Rescuer Rule - D liable for harms encountered during rescue of a person who was imperiled by D's tortious conduct; The Atherton Rule - An actor whose tortious conduct causes harm to another is liable for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the injury, so long as the enhanced harm arises from a risk that inheres in the effort to render aid; The "thin skull" rule - The D takes him victim as he finds him. Despite preexisting conditions that make the person's harm greater than expected, the actor whose tortious conduct causes the harm is liable for all such harm to the person.
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Rescuer is liable to the helpless person for bodily harm he causes when he
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1. He fails to exercise reasonable care in securing the victim's safety
2. He discontinues aid and leaves P in a worse position than he was in when he took charge of him. |
2 possibilities
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Can also be liable for negligently preventing or disabling another's rescue if you
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know or should know that a third person is giving or ready to give another aid necessary to prevent physical harm
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If you create a continuing risk of physical harm that is a proximate cause of your conduct, you have a duty to
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exercise reasonable care to prevent or minimize the harm (duty attaches regardless of fault in creating the risk)
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icy trucks stalled on highway, no warning despite ample time
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Landowner duty to trespasser
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no duty of care, unless willful or wanton conduct
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Attractive nuisance - A possessor land is liable for physical harm to children trespassers if
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1. artificial condition on the land
2. possessor knows or has reason to know that children are likely to trespass AND 3. Children do not discover the condition or realize the risk involved (A of R) |
3 requirements
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Landowner duty to licensee (majority and minority view)
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majority view - duty to warn of hidden dangers of which D knew
minority view - duty to warn of hidden dangers of which D knew or should have known |
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Landowner duty to invitee
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duty to warn of all hidden danger that could have been discovered upon reasonable inspection
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Defenses for premises liability
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A of R, contributory negligence, open and obvious
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Intermediate modern approach to premises liability
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duty to warn of hidden dangers which reasonable inspection would reveal to all persons, unless a trespasser - no duty unless wanton or willful conduct
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Fully modern approach to premises liability
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abolishes all distinctions between types of P, duty of reasonable care to all persons
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An actor is is liable for negligence in voluntary undertaking that he knows or should know reduces the risk of physical harm to the other if
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1. his negligence increases the risk of harm beyond that which existed without his undertaking OR
2. The person to whom the services are rendered or another RELIES on him exercising reasonable care in the undertaking. |
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No duty to prevent 3rd person from causing physical harm to another unless
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1. spécial relationship which imposes a duty on actor to control 3rd person's conduct
2. special relationship which gives the other a right to protection (LL, innkeeper, bus system - duty of reasonable care to protect tenants from foreseeable criminal acts by 3rd parties) |
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Duty of reasonable care to third persons with regard to risk posed by other arising in the scope of relationship (examples)
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parent with dependent children, custodian with those in custody, mental health professional and patients (most likely no duty unless victim is reasonably identifiable)
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Policy reasons for departing from no duty rule
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foreseeability, special relationship, control, reasonably identifiable victim, utility/cheaper precaution
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RST 6 factors for finding an abnormally dangerous activity
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1. Existence of a high degree of risk of some harm
2. Likelihood that such harm will be great 3. Inability to eliminate the risk through reasonable care 4. Activity is not one of common usage 5. Activity is inappropriate to the place where its carried on 6. Extent that activity’s value to the community is outweighed by its dangerous attributes |
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RTT 20 - An activity is abnormally dangerous if
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1. It creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and
2. The activity is not one of common usage. |
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policy reasons for SL regime for product defects
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fairness, loss minimization, cheapest cost avoider, loss spreading, insurance against liability, incentivize manufacturers to make safer products and to take precautions to guard against future hazards
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Manufacturing defect - P must prove
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1. the product is different from the others in its line AND
2. the defect is a proximate cause and cause in fact of P's injury |
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Design defect - OCE
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did it perform as a consumer would expect when used in an ordinary manner? (no experts)
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Design defect - RU test
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jury balances risk of danger inherent in the design against the benefits of the design; might need experts; lots of leeway to jurors
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Design defect - RAD test (Rest.)
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Could the foreseeable risks of harm posed by the product have been reduced or avoided by the adoption of a RAD and the omission of the RAD renders the product not reasonably safe?
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Unavoidably unsafe products (comment K to RST)
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If accompanied by proper directions and warning and properly packaged and marketed, not defective and no SL
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RTT design defect claims for prescription drugs and medical devices (not usually used)
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PD or MD not reasonably safe due to defective design if the foreseeable risks of harm posed by it are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health care providers would not prescribe it for ANY class of plaintiffs
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Gore Guideposts for Reviewing Punitive Damages
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1. Reprehensibility of the D's misconduct
2. Disparity between actual or potential harm suffered by the P and the punitive damages award (needs to be a nexus between D's conduct and damages given; 1:9 or less) 3. Difference between punitive damages awarded and the civil penalties for comparable cases |
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Collateral source rule
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Ps in personal injury actions can still recover full damages even though they have already been compensated for their injuries by other collateral sources (e.g. insurance policies)
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majority view treats gratuitous sources the same
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Rationales for CSR
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1. Deterrence purpose still needs to be served
2. Gap filler for attorney’s fees and other costs to P 3. Substantive fairness – unfair for D to benefit from P’s risk-averseness 4. Don’t want to discourage people from getting insurance |
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Defamation element of "publication"
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Must be communicated to a 3rd party
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Defamation element of "of and concerning [P]"
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Must be reasonable that people would draw the conclusion that the statement is about P
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Defamation element of "defamatory meaning" (RST 559)
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Must so harm the reputation of the P as to lower him in the estimation of the community OR to deter 3rd persons from associating or dealing with him
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not a bright line rule; will have to look at context
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Defamatory statement that injures P's reputation with some members of the community (American rule)
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Ps can recover if the statement prejudices P in the eyes of a substantial and respectable minority of members of the community.
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Defamation per se (4 categories)
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1. Commission of a serious criminal offense or a crime of moral turpitude
2. Imputation of unchastity 3. Venereal/infectious/loathsome disease 4. Injures P in trade or profession |
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Defamation per quod
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statements requiring extrinsic facts to show their defamatory meaning; actual pecuniary loss to P's reputation traceable to the D's statement must be shown (special damages - must show that defamation is proximate cause and cause in fact of loss (something that otherwise would have been conferred on P)
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injurious falsehood
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P may be able to recover for the separate tort of injurious falsehood if the statement is false but not defamatory (harm to reputation); requires proof of malice
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Common law qualified privilege - inquiry
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Does the speaker or the receiver have an individual or common interest in the communication of the information AND is the communication relevant to protecting that interest?
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Common law defense of truth - defined and rationales
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D must establish substantial truth (truth only as to the sting of the statement)
Rationales - promotes caution, puts the burden on the speaker; presumption that the P has a good reputation; hard to prove a negative - that something's not true |
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2 ways the common law privilege can be lost
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excessive publication and malice
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Fair comment privilege
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qualified privilege for opinion based on facts that are fairly and accurately described
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Fair and accurate summary of government proceedings and investigations
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qualified privilege; summary is defamatory if it carries a greater sting than the government report itself
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public officials
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those who have substantial responsibility and control over public affairs (police officers, political candidates, etc.)
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public figure
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a person of general prominence or someone who thrusts themselves into the center of a controversy
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